Class Actions And The Continued Significance Of Arbitration Agreements

The recently released Carlton Fields 2016 Class Action Survey reports that class actions are up for the first time in four years. While data privacy class actions still make up a relatively small portion of class action filings, their growth is expected to continue.

As class actions increase, arbitration clauses remain a popular first line of defense. The Carlton Survey reported that nearly 50 percent of companies employ arbitration clauses that address class actions.  Still, enforcing such arbitration clauses often generates mini-litigations in their own right.  Two recent decisions from the Fourth Circuit are of interest in this regard.

Dell Webb Communities, Inc. v. Carlson (4th Cir., March 28, 2016): The Fourth Circuit addressed the question of who decides whether an arbitration agreement provides for class arbitration – a question, the Fourth Circuit noted, "the Supreme Court has not conclusively" answered. What is clear is that procedural questions may